International Law in the U.S. Supreme Court: A Response to Professor Golove’s Essay

by Andrew Kent

Thank you to Opinio Juris for having me back. It’s always a great pleasure and honor to guest blog at such a terrific forum.

The volume of essays under review is an impressive and extraordinarily useful collection. I learned something—and often many things—from every essay I read. I was consistently impressed with how the authors discussed controversial and complicated subjects with great balance and sensitivity to opposing points of view.

Parroting the format of Part V of the book, I’ve decided to post something in the nature of an additional “response essay” to David Golove’s fascinating essay on “The Supreme Court, the War on Terror, and the American Just War Constitutional Tradition.”

Like Mike Ramsey (Response Essay in Part V.E.) I find much to admire but also some things to question and debate in Professor Golove’s thought-provoking contribution to this volume. Professor Golove argues that the war-on-terror decisions in Hamdi, Rasul, Hamdan and Boumediene were striking departures from more recent precedent and principles, but were fundamentally consistent with three deeper themes from earlier periods of American constitutional history, what Professor Golove calls the three “basic features of the traditional American Just War Constitution”: (A) the President was constitutionally required to observe the laws of war; (B) and so too Congress; and (C) the judiciary had an active role in policing Executive branch compliance with the laws of war (at pp. 564-65).

In this essay, Professor Golove does not extensively discuss the evidence supporting these three claims. He refers the reader instead to two unpublished manuscripts (at p. 564 n.19). I eagerly await the publication of these pieces. I am sure that, like all of Professor Golove’s work, they will be immensely erudite, well-researched and creative. I have to say, though, that I think it might be difficult to fully defend all three propositions. (B) is the most problematic, in my opinion, followed by (C). Proposition (A) is, in my view, partially but not wholly correct, varying over time and context and by historical actor.

Like Professor Golove, but even more so, I am space constrained and so cannot set out much of the relevant historical evidence. I will just note a few cases relevant to claim (B). Historically, the high point of the power and influence of customary international law in the U.S. legal system was in the Founding and early antebellum periods. Yet even at that time, numerous Court decisions, often authored by Chief Justice Marshall, made clear that Congress had the authority to depart from, or to modify for domestic purposes, rules of the unwritten law of nations, including the laws of war. See, e.g., Thirty Hogsheads of Sugar v. Boyle (1815); The Nereide (1815); The Schooner Adeline (1815); The Schooner Exchange v. McFaddon (1812). To my knowledge, the Supreme Court (in a majority opinion) has never once held or suggested otherwise.

There is much to say about Professor Golove’s claim (C), and Professor Ramsey’s excellent response essay makes a good start. I am content to await the publication of Professor Golove’s two articles before fully joining issue on the historical questions, but for now will just make one comment: Professor Golove’s analogy between judicial supervision of the Executive in prize cases in earlier periods and today’s judicial supervision of the Executive’s war-on-terror detention operations (at pp. 569-71 ) is not entirely persuasive to me because I think other factors must be accounted for. Professor Golove reads the history of U.S. courts supervising Executive prize captures as a story about the judiciary independently and assertively securing the rule of law in an area where Executive mistakes or over-reaching could be expected to frequently infringe private rights. So too is aggressive judicial review needed in the war-on-terror detention context, he contends, because the complexities of the conflict make it quite difficult to accurately identify enemies. I think a different or at least supplemental story can be told about why U.S. courts were so actively involved in prize litigation. Briefly, the reasons are (i) the Constitution commanded or at least contemplated it, in Article III’s admiralty clause; (ii) Congress and the Executive commanded or at least contemplated it, in numerous statutes and proclamations which stated or assumed that federal courts should hear prize cases and determine them according to international law; and (iii) in order to get the economic benefit of seizing enemy prizes, the captor needed title to the vessel or cargo that would be respected worldwide; judicial review and sign-off on the seizure provided this good title. Understood as flowing from these premises—either instead or in addition to Professor Golove’s premises—judicial involvement in prize disputes does not provide any large amount of support for the strikingly aggressive judicial review (called “judicial imperialism” by Prof. Ramsey’s response essay) seen in Boumediene, Hamdan etc., especially when, as in Boumediene, the Court overrides policies set by the President and Congress jointly.

As I said at the outset, the entire collection—and most certainly Professor Golove’s provocative contribution—is of the highest quality and well worth a read. Many thanks to the editors and authors for producing such a terrific piece of work.

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11 Responses

Prof. Kent wrote: “Yet even at that time, numerous Court decisions, often authored by Chief Justice Marshall, made clear that Congress had the authority to depart from, or to modify for domestic purposes, rules of the unwritten law of nations, including the laws of war. See, e.g., Thirty Hogsheads of Sugar v. Boyle (1815); The Nereide (1815); The Schooner Adeline (1815); The Schooner Exchange v. McFaddon (1812). To my knowledge, the Supreme Court (in a majority opinion) has never once held or suggested otherwise.”

Although I may have missed something in re-reading these cases, it appears that SCOTUS never held that Congress could depart from the rules of the unwritten law of nations.

Francisco Forrest Martin

7.26.2011
at 12:16 pm EST Francisco Forrest Martin

The Schooner Exchange v. McFaddon, 11 U.S. 116, 145-46 (1812) (“It seems then to the Court to be a principle of public law that national ships of war entering the port of a friendly power open for their reception are to be considered as exempted by the consent of that power from its jurisdiction. Without doubt, the sovereign of the place is capable of destroying this implication. He may claim and exercise jurisdiction either by employing force or by subjecting such vessels to the ordinary tribunals. But until such power be exerted in a manner not to be misunderstood, the sovereign cannot be considered as having imparted to the ordinary tribunals a jurisdiction, which it would be a breach of faith to exercise.”); Thirty Hogsheads of Sugar v. Boyle, 13 U.S. 191, 198 (1815) (“The United States having at one time formed a component part of the British empire, their prize law was our prize law. When we separated, it continued to be our prize law so far as it was adapted to our circumstances and was not varied by the power which was capable of changing it.”); The Nereide, 13 U. S. 388, 422-23 (1815) (“The third point made by the captors is that whatever construction might be put on our treaty with Spain, considered as an independent measure, the ordinances of that government would subject American property under similar circumstances to confiscation, and therefore the property claimed by Spanish subjects in this case ought to be condemned as prize of war. The ordinances themselves have not been produced, nor has the Court received such information respecting them as would enable it to decide certainly either on their permanent existence or on their application to the United States. But be this as it may, the Court is decidedly of opinion that reciprocating to the subjects of a nation or retaliating on them its unjust proceedings towards our citizens is a political, not a legal, measure. It is for the consideration of the government, not of its courts. The degree and the kind of retaliation depend entirely on considerations foreign to this tribunal. It may be the policy of the nation to avenge its wrongs in a manner having no affinity to the injury sustained, or it may be its policy to recede from its full rights and not to avenge them at all. It is not for its courts to interfere with the proceedings of the nation and to thwart its views. It is not for us to depart from the beaten track prescribed for us, and to tread the devious and intricate path of politics. Even in the case of salvage, a case peculiarly within the discretion of courts because no fixed rule is prescribed by the law of nations, Congress has not left it to this department to say whether the rule of foreign nations shall be applied to them, but has by law applied that rule. If it be the will of the government to apply to Spain any rule respecting captures which Spain is supposed to apply to us, the government will manifest that will by passing an act for the purpose. Till such an act be passed, the Court is bound by the law of nations which is a part of the law of the land.”); The Schooner Adeline, 13 U.S. 244, 287 (1815) (“We cannot interpose a limitation or qualification upon the terms which the legislature has not itself imposed, and if there be ground for higher salvage in cases of armed vessels, either upon public policy or principle, such considerations must be addressed with effect to another tribunal.”).

7.26.2011
at 1:34 pm EST Andrew Kent

Andrew, I don’t want to speak for David – hopefully, he’ll respond himself – but I would think that he would argue, much as Bill Dodge has here, that those cases dealt with the “customary” or “conventional” law of nations, from which Vattel suggested states could withdraw. I think David would argue that at least some rules of the law of war, which he would class in the “Just War tradition,” would actually fall into Vattel’s confusingly labeled “voluntary” law of nations, which the founding generations would have understood to be absolutely binding.

“It is urged that in executing the laws of war, the executive may seize and the courts condemn all property which, according to the modern law of nations, is subject to confiscation, although it might require an act of the legislature to justify the condemnation of that property which, according to modern usage, ought not to be confiscated.
This argument must assume for its basis the position that modern usage constitutes a rule which acts directly upon the thing itself by its own force, and not through the sovereign power. This position is not allowed. This usage is a guide which the sovereign follows or abandons at his will. The rule, like other precepts of morality, of humanity, and even of wisdom, is addressed to the judgment of the sovereign, and although it cannot be disregarded by him without obloquy, yet it may be disregarded.”

The key question is not whether the U.S. has ‘the power but not the right’ (to paraphrase Louis Henkin) to violate international law. It does. The key question is: which branch of the U.S. government may constitutionally exercise this sovereign power? My research leads me to believe that in most cases it is Congress. In some very narrow circumstances it has been (and may still be) the executive.

7.26.2011
at 4:20 pm EST John C. Dehn

Prof. Kent,

I don’t see how any of the passages you quote from these cases supports your position that SCOTUS has held that Congress can depart from the unwritten law of nations (by which I suppose you mean the customary and voluntary law of nations — and maybe the natural law of nations). Indeed, some of the passages seem absolutely non-relevant. Could you expound?

Francisco Forrest Martin

7.26.2011
at 4:37 pm EST Francisco Forrest Martin

Prof. Cohen,

Let me start by saying that I have not yet received or read my copy of the book. I am looking forward to it. I will assume that you accurately portray Prof. Golove’s argument (or underlying thought). It seems quite consistent with what I just quoted from Brown.

I am intrigued by the suggestion that some portion of the law or war branch of the law of nations is within Vattel’s conception of the voluntary law. The universal nature of that body of law seems to me at odds with the development of constraints on war, which in all cases seems to have been by practice (custom) that was not universal. American law of war scholars from the 19th century, for example, noted that the laws of war did not apply to “wars of religion” or “wars of opinion” (as they defined them). According to Wheaton, constraints were observed between Christian nations, and later between “civilized” nations. Other than Hugo Grotius’ definitions of “public” and “private” war, which seem to me “necessary” law —i.e. flowing from “the application of the law of nature to states,” (Vattel) I am not certain what other rules of war would not be customary law “or that which, from motives of convenience, has by tacit but implied agreement prevailed.” (commentary to Vattel)

I am also intrigued because Vattel identified “voluntary” law as positive law — law stemming from the will of nations. Commentary in my copy of Vattel’s work states that voluntary law was established “by the uniform practice of nations in general, and by the utility of the rules themselves.” Would you (or would Prof. Golove) offer a modern definition of this law that differs from modern notions of customary law as defined in the ICJ statute? Do you (or does Prof. Golove) think Chief Jusitice Marshall would distinguish between “modern usage” that is customary and and “modern usage” that is universal in the passage I quoted from Brown?

John Dehn

7.26.2011
at 5:00 pm EST John C. Dehn

Prof. Dehn,

Again, I may be wrong, but I don’t think Brown stands for the proposition that Congress can depart from the customary or voluntary law of nations.
“Modern usage,” as used by Marshall in Brown, did not mean the customary law of nations binding on the U.S. It referred only to the practices of some foreign nations at the time that did not have opinio juris. Therefore, Congress lawfully could accept such practices as legally obligatory or not.

Francisco Forrest Martin

7.26.2011
at 5:43 pm EST Francisco Forrest Martin

The voluntary law of nations is what the ICJ Statute calls “the general principles of law recognized by civilized nations.”

Francisco Forrest Martin

7.26.2011
at 7:11 pm EST Francisco Forrest Martin

Prof. Dehn, My reading of Vattel has always been that with regard to the voluntary law of nations, consent and practice are more imagined than real. Vattel explains that states consent to the voluntary law of nations because the law of nature requires it. Consent to those rules is a concomitant of statehood and is thus presumed. General practice is used as proof that a rule is required by the voluntary law of nations, not as the justification for its status as law (as traditional understandings of custom in the ICJ statute would have it).

Vattel certainly put some rules of the law of war in the voluntary category. In Book 3, on Enemy Property, he specifically labels poisoning, assassination, massacre of surrendering troops, and wanton destruction as violations of the voluntary law of nations. He also seems to indicate that offenses against the law of nations and their proper punishment may be at least partly regulated by that law.

7.26.2011
at 9:19 pm EST Harlan Cohen

FFM, with all due respect, in my humble opinion you read Brown too narrowly. I think Marshall ultimately concluded (questionably) that the rule prohibiting immediate seizure of the commercial property of an enemy national upon the outbreak of war had become customary law. Thus, I would equate his “modern usage” with customary law. Additionally, I agree that it is tempting to equate Vattel’s voluntary law to the ICJ statute’s general principles of law. I am simply uncertain whether there is an absolutely perfect equality there.

Prof. Cohen, you make a fair point regarding “imagined” state practice. No practice is truly universal and presumed consent would not be necessary if it were. I suppose my main concern is your statement that such law is “absolutely binding.” If voluntary law is positive law because it is based on presumed consent and “proceed[s] from the will of nations,” it seems to me that nations could adopt a different rule without violating the immutable “necessary” law. FFM fairly equates voluntary law to general principles of law, but I struggle to find a basis for equating it to a jus cogens peremptory norm, as you seem to do. The only law Vattel defines as immutable is “necessary” law.

A case in point: In my view, Vattel’s description of voluntary law seems to suggest that non-intervention in the internal affairs of another state is one such rule/principle (derived from the natural law). That has changed. First, members of the U.N. consented to such intervention when their internal affairs are a threat to the peace and the Security Council takes action under Chapter VII. Additionally, one could argue for an emerging customary responsibility to protect principle that authorizes such intervention in certain narrow circumstances.

I am thinking out loud but it may be proper to say that the laws of war began primarily as voluntary laws later altered by custom and treaty. That some of those initial rules have remined unaltered does not establish the principle that voluntary law may never be changed because it is absolutely binding.

7.27.2011
at 7:36 am EST John C. Dehn

States breach their international obligations – Congress or the Executive or the Judiciary. Sometimes one or some of these entities push the state to remain in compliance with the international law obligation sometimes they do not. Doesn’t change anything about the international obligation – just whether the state is in compliance or not. And, if the state seeks to assert its noncompliance is valid based on some internal rules, international law has the rule that no state can extract itself from its international obligations through its internal law. Judicial timidity or aggressiveness in addressing Executive or Congressional lawlessness is just about whether the state is going to comply or not.
Best,
Ben

7.27.2011
at 2:58 pm EST Benjamin G. Davis

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